A conditional order under Section 133 CrPC must be procedurally compliant, ensuring the right to a hearing for the affected party before a final order is issued.

O R D E R

Assailing the legality, correctness and propriety of Annexure A1 order dated 16/2/2006 purporting to have been issued under Section 133 (1) of the Code of Criminal Procedure (CrPC) by the Sub Divisional Magistrate, Ottappalam, this revision petition is preferred. Annexure A1 order reads as follows:

“Village Officers's report dated 21/10/2005-It is reported that after receive the notice the respondent has cut and remove some branches of trees which caused nuisance to the property of the petitioner and two coconut trees has been tied with stay wire-but it is also reported that, on enquiry it is known that one coconut tree belonging to the respondent standing near the house of petitioner is to be cut and removed to abate this threat.”

Going by Annexure A1 order, I could not make out any head or tail out of it.

2. The records were called for. The records do not contain any such order. Whereas it would contain a copy of the order dated 20/9/2005 issued as if a notice. The operative portion of the order reads as follows:

“In this circumstance, inview of the report submitted by the village officer, Chalavara, I hereby direct the respondent Siddique to cut and remove/tie with stay wire the trees/branches of trees which are found to be pausing threat to the life and property of the petitioner within 7 days in receipt of this notice without fail in the presence of the village officer, Chalavara.”

The above order would show that there is a mandate directing the revision petitioner to cut and remove/tie with stay wire the trees/branches of trees which are found to be pausing threat to the life and property of the petitioner within seven days. Records also would show that the petitioner filed objection stating that she had cut down branches of trees which paused threat and coconut trees were tied with stay wire and there is no further threat.

3. There is no whisper in the order that in fact, the lower authority had considered the objection raised by the petitioner and arrived at a conclusion that any of the trees are further threat to the life and property of the defacto complainant. Whatever it may be, I find that neither Annexure A1 order or the notice is in compliance of Section 133 CrPC which reads as follows:

“133.Conditional order for removal of nuisance.--(1)Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers--

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) that any dangerous animal should be destroyed, confined or otherwise disposed of, Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping